2.2. Notification by means of electronic communication

Under R. 127 EPC, notification may also be effected by means of electronic communication as determined and under the conditions laid down by the President of the EPO. However, for this to happen, users must have agreed to receive communications by such means (see notice of the EPO dated 30 March 2015, OJ 2015, A36).

With effect from 1 November 2023, R. 127(2) EPC was amended to abandon the ten-day legal fiction for notification and to introduce the notification legal fiction based on the date of the document (CA/D 10/22, OJ 2022, A101). In the case of a notification by means of electronic communication, under EPO practice, the date of a document is the date of its electronic transmission. See notice from the EPO of 25 November 2022 concerning legal changes to support digital transformation in the patent grant procedure (OJ 2022, A114) and notice from the EPO of 6 March 2023 concerning amended R. 126, 127 and 131 EPC (OJ 2023, A29).

Electronic notification is effected by electronic communication to an activated Mailbox. A document reaches its destination within the meaning of R. 127(2) EPC on the date the document has been made available in the corresponding Mailbox. For further details, see the decision of the President of the EPO dated 9 February 2024 concerning the web-based online service MyEPO Portfolio and electronic notification to the Mailbox in proceedings under the EPC and the PCT (OJ 2024, A20) and the notice from the EPO dated 9 February 2024 concerning new features of the MyEPO Portfolio (OJ 2024, A21). As from 1 July 2024, the Mailbox may only be accessed via MyEPO Portfolio (see the decision of the President of the EPO dated 22 April 2024 concerning the decommissioning of certain online services (OJ 2024, A43) and the notice from the EPO dated 22 April 2024 concerning the decommissioning of certain online services (OJ 2024, A44)).

From 1 June 2021, the Boards of Appeal began to notify documents in appeal proceedings electronically via the Mailbox (notice of the President of the Boards of Appeal dated 13 April 2021 concerning the extension of electronic notification via the EPO Mailbox to appeal proceedings; OJ 2021, A37).

On 1 September 2020 the EPO launched a pilot project permitting examining divisions to use email to notify important information about oral proceedings (see decision of the Vice-President Legal and International Affairs (Directorate-General 5) of the EPO dated 23 July 2020, OJ 2020, A89). The pilot project came to an end on 31 August 2021 (OJ 2021, A67). In T 762/20 the board explained that D5 had only been introduced into the first-instance proceedings by email. However, the electronic file, which was the sole official file relating to the application (R. 147(1) EPC) and the record of the first-instance proceedings available for file inspection and used by the board in its judicial review, did not contain this email. The board thus agreed that the appellant had not been officially informed of an inventive-step objection based on D5 prior to the notification of the contested decision.

Facsimile ("fax") transmission of notifications is generally not admissible (J 27/97) and therefore does not constitute valid notification even if receipt is proven. The situation was different in T 580/06 where notification of a shortfall under point 6.4 ADA was sent only by fax. However, this form of notification was in keeping with point 6.4 ADA in conjunction with R. 77(2)(d) EPC 1973. The President of the EPO had not laid down conditions for notifications by fax within the meaning of that rule; in particular, postal confirmation of the fax had not been made compulsory. Thus the notification had been made in an appropriate form. In the board's view, the "OK" on the fax transmission report was to be regarded as evidence of complete and error-free transmission, on which the fax became the recipient's responsibility.